The Legitimacy of AI As a Copyright Author Dr. Abdulaziz Alkhalifa

The Legitimacy of AI As a Copyright Author

شرعية الذكاء الصناعي كمؤلف وفق نظام حقوق المؤلف

Dr. Abdulaziz Alkhalifa

Prince Satam bin Abdulaziz University

د/ عبدالعزيز الخليفة

أستاذ مساعد في كلية إدارة الأعمال بجامعة الأمير سطام بن عبدالعزيز

Abstract

The Kingdom of Saudi Arabia has invested billions of dollars to be a future leading AI hub. Simultaneously, the Kingdom has been developing its IP regime. These investments and the development of AI and IP evoke critical questions about the relationship between AI and intellectual p roperty. One significant question is the legitimacy of AI as an author and the copyrightability of AI-generated material. These questions have been debated internationally where some intellectuals believe that AI should be granted IP protection, and others disagree. In Saudi Arabia, the relationship between AI and IP has been ambiguous.  However, a new IP law was drafted recently that governs IP in general and its relationship with AI. The paper provides an overview of AI copyrightability and legitimacy as an author and a detailed explanation and determination of the copyrightability of AI based on the analysis of IP Law and international legal experiences. It, also, sheds light on legal issues related to AI and IP and provides several solutions.

Key Words

IP infringement, AI Copyrightability, AI, Saudi Arabia IP, AI Authorship, Saudi Legal System, AI Monopoly, Public Domain, AI Prolificacy, AI Infringement, AI Generative work, AI effect on AI, AI creation ownership, Intellectual Property Law.

ملخص

استثمرت المملكة العربية السعودية مليارات الدولارات لتكون مركزًا رائدًا للذكاء الاصطناعي في المستقبل. وفي الوقت نفسه، قامت المملكة بتطوير نظام الملكية الفكرية الخاص بها. وتثير هذه الاستثمارات وتطوير الذكاء الاصطناعي والملكية الفكرية أسئلة بالغة الأهمية حول العلاقة بين الذكاء الاصطناعي والملكية الفكرية. أحد الأسئلة المهمة هو مدى شرعية الذكاء الاصطناعي كمؤلف وأهلية حقوق المؤلف للمواد التي ينتجها الذكاء الاصطناعي. لقد نوقشت هذه الأسئلة على المستوى الدولي، حيث يعتقد بعض المثقفين أنه ينبغي منح الذكاء الاصطناعي حماية الملكية الفكرية، بينما يختلف البعض الآخر. في المملكة العربية السعودية، كانت العلاقة بين الذكاء الاصطناعي والملكية الفكرية غامضة.  ومع ذلك، تمت صياغة قانون جديد للملكية الفكرية مؤخرًا يحكم الملكية الفكرية بشكل عام وعلاقتها بالذكاء الاصطناعي. تقدم الورقة نظرة عامة على أهلية حقوق المؤلف للذكاء الاصطناعي وشرعيته كمؤلف وشرحًا تفصيليًا وتحديد أهلية حقوق المؤلف للذكاء الاصطناعي بناءً على تحليل قانون الملكية الفكرية والتجارب القانونية الدولية. كما يسلط الضوء على القضايا القانونية المتعلقة بالذكاء الاصطناعي والملكية الفكرية ويقدم العديد من الحلول.

Introduction

Last year it has elapsed with a significant development of Artificial intelligence industry in the Kingdom of Saudi Arabia. The Kingdom was recognized as the leading country in the Government Strategy Index for Artificial Intelligence which is one of the indicators of the global classification of artificial intelligence issued by Tortoise Intelligence.  This unprecedented development is a reflection of the effort the kingdom has invested in AI as the Kingdom has adopted the National Strategy for Data and AI (NSDAI).  This strategy emphasizes Saudi’s commitment to boosting the ICT sector’s contribution to Saudi Arabia’s Gross Domestic Product (GDP) and leveraging responsible AI to achieve its national digital transformation objectives, solidifying its data and AI hub role. According to the strategy the Kingdom aims to invest over USD 20 billion in Data and AI and be amongst the top 15 countries in the development and application of AI by 2030.

On the other hand, Saudi Arabia has been developing its Intellectual Property Laws and regulations to cope with the leading country. A few years ago, IP Violations occurred every day in Saudi Arabia. According to one estimate, these violations cost the kingdom around twenty billion RS annually.  These discouraged Authors, artists, inventors, and other creators of IP from creating new work due to the potential theft. As a result, the Kingdom was placed on the priority watch list in 2018. According to the 301 special report “Saudi Arabia is included in the Watch List in 2018 in response to recent deteriorations in IP protection for pharmaceutical products, in addition to outstanding concerns on enforcement and the continued use of unlicensed software by the government.”  However, with the current development of the IP administration and regulation Kingdome, the situation has changed, and the Kingdom was removed from the watch list. The Kingdom established the Intellectual Property Authority to increase IP protection and enforcement, raise public awareness, and increase the scrutiny of IP infringements. The Kingdom Also, established the Research, Innovation and Development Authority to promote innovation and IP utilization.

 This tremendous development of artificial intelligence, Intellectual property, and Innovation in the Kingdom evokes an essential question about the role of Artificial intelligence on intellectual property. In other words, global progress and reliance on technology have led AI to author and innovate various IP work which sheds a light on the legitimacy of AI’s role as an author. In 2019, the question of the legitimacy of AI as the inventor was brought to the U.S court when the Device for the Autonomous Bootstrapping of Unified Sentience (DABUS), which Dr. Stephen Thaler invented was listed as the inventor in a patent application.  DABUS created a computational invention and sought patent protection for it in 2018.  The application failed in various countries including the USA, Europe, Australia, South Africa, and the United Kingdom.  The United States Court of Appeals for the Federal Circuit (CAFC) held that an AI system cannot be an inventor on a United States patent application due to the fact that the US Patent Act requires an inventor to be a natural person.  The outcome of the case evokes the question about the legitimacy of AI as an Author and innovator in Saudi Arabia, especially with the prevalent use of AI technology such as ChatGPT.

The current Saudi copyright Law was enacted by Royal Decree No. M / 41 in 2003. The law defines the Author as the person who creates the copyrighted material. Article (5.1) states “An author is any person who publishes a work attributed to himself by mentioning his name on the work or by any other means used to attribute works to their authors unless there is evidence to the contrary.”  Furthermore, Article (1) of the implementing regulation defines the Author as “Every artist who innovates with his or her efforts in any literary, artistic or scientific work, such as writer, poet, painter, musician or other artist, according to the template in which expression is empty.”  Vividly, the law qualifies only humans to be authors which disqualifies artificial intelligence. This indicates that copyrighted material created by AI is not eligible for IP protection due to the absence of human authorship.

The legal definition of Authors stated above has been adopted by other countries. For instance, the United Arab Emirates does not qualify AI to be an Author.  Article 1 of the UAE Copyrights and Neighboring Rights states that “the Author is the person who creates the work, or the person whose name is mentioned thereon or if, upon Publication, the Work is attributed to him as being the author thereof unless otherwise proven.” Furthermore, in China, the Beijing court concluded that the creation of humans is compulsory and required for the eligibility of copyright protection. The court ruling can eliminate AI from authorship.

Moreover, the U.S. Copyright Act limits the scope of authorship to merely humans. The U.S Copyright Office rejected an application where Creativity Machine which is a computer algorithm running on a machine, was listed as the Author.  The machine created an image depicting a set of train tracks running through a lush countryside entitled “A Recent Entrance to Paradise.”  However, the office affirms that copyright protection extends only to materials created by humans.  The plaintiff filed a suit challenging the copyright office’s decision arguing that copyright extensively adapts to new technologies and AI Authorship should be contemplated.  The U.S. Federal court rejected the argument and asserted that even though copyright is intended to adjust as time lapsed and contemplates unforeseen and new mediums of expression, the requirement of human authorship and human creativity are required.

AI and new IP System:

Last year, The IP Authority introduced the Saudi Intellectual Property Law,  which was drafted last summer. The IP Law aims to govern all other IP laws such as Copyright Law, Trademark Law, Patent etc. It comes with general rules that govern general IP aspects in the Kingdom and refers the specific technical matters to the particular IP Laws. One controversial issue the IP law regulates is AI and its role in IP. Article Seventeen of the Law states “Intellectual property generated by artificial intelligence is not protected unless there is significant human contribution.”  Moreover, Article 19 articulates that Intellectual property generated by artificial intelligence should be in the public domain when:

1) AI independently reaches the IP material without humans.

2) When AI creates IP Material with an insignificant human contribution.

Finally, the Law declares that with the presence of significant human contribution, the person who runs the AI is the Author.  This indicates that copyrighted material created through AI with significant human contribution can be protected and be granted intellectual property rights. However, AI cannot be registered as the Author but the person who operates it.

In the case of copyright, the IP Law determined the legal stand of Saudi Arabia in matters involving AI copyrightability and Authorship. It protects copyrightable material created through AI As long as it is accompanied by a significant human contribution. This excludes any copyrightable material developed independently by AI from legal rights and protection. This material will be in the public domain where every individual has the right to access them. This legal approach that the Kingdom has adopted evokes an essential question of whether this is the right approach considering the massive development of AI and technology. In other words, with the development of AI should AI independent creation be protected and granted copyrights?

The Question of AI copyrightability and Authorship:

Internationally, the question of human creativity requirements and IP rights was not brought up because of AI in the first instance.  A famous case in the USA known as, the “Monkey selfie” case brought a legal question to the court about the eligibility of Animals, a non-human entity, for authorship.  The court concluded that the author cannot be the monkey following the Copyright Act; thus, the court dismissed the case.  This points to the fact that; animals may not be perceived as authors and may not be granted copyright since animals are the property of individuals or states. AI, on the other hand, is a property, but creations produced by AI are entirely different from animals. AI is an intellectual property that produces intellectual material and Animals are not.

An essential element that should be taken into consideration in answering the question of AI copyrightability and authorship is acknowledging the fact that copyrights are a method of reward and excluding AI from such a reward may inhibit the development of AI and its role in creativity and innovation. When the outputs of artificial intelligence are not protected, developers of AI programs may be discouraged and their ability to control the policies of making these outputs available to the public may be affected.  Furthermore, excluding AI creation from copyright protection disincentivizes companies to develop its products.  Therefore assigning limited Copyright protection for AI might be essential for these technologies to develop and for its developers to produce. However, it is crucial before granting any copyright protection for AI that legislators be vigilant for possible issues that may arise from granting IP protection for AI.

Possible Issue of Protecting AI:

AI infringement:

One significant issue of protecting AI is that massive amounts of data including texts, images, and parameters, are necessary to train AI generative systems such as ChatGPT.  In the training, AI programs distinguish patterns to make rules and make judgments and predictions. This offers them the ability to be responsive to user prompts.  Nevertheless, intellectual property infringements may occur during the training process because most of the time data are derived from the internet which may involve copyrighted content.  Several lawsuits have been filed by copyright owners against AI generators infringing the copyright of millions of images without the author’s consent.

One approach that AI uses to obtain knowledge and information is Text & Data Mining (TDM). According to ACS Publication, TDM “employs artificial intelligence, machine learning, and complex algorithms to perform sophisticated analyses on large amounts of data to extract relationships and trends that don’t typically surface via traditional techniques.”  Data mining involves copying protected digital works which may constitute copyright infringement if it occurs without the author’s consent.   Authors have filed many suites against TDM practices—for instance, Authors Guild v. Google, Inc. in the USA. The Plaintiffs are authors who published several books and sued Google for infringing their copyright.  They argue that Google through its Library Project and its Google Books project has created digital copies of tens of millions of books, including the plaintiff’s books without the consent of the copyright holders.

The district court concluded that Google’s engagements constituted fair use.  The plaintiffs appealed challenging the district court’s ruling favoring Google. The appellate court affirmed and construed that Google’s unconsented digitizing of copyrighted material, establishing a search functionality, and exhibiting scraps from those materials are protected by fair use and do not constitute an infringement.  Additionally, the court asserts that the Exhibition of the scraps is limited, the copying is purposed to be highly transformative, and the market of protected aspects of the originals is not substituted by Google’s revelations.  The court affirms that the commercial nature and profit motivation of Google do not justify the denial of fair use.

In addition to the U.S., several countries have excluded TDM from infringement. The Intellectual Property Office in the UK, for instance, legislated its data mining exception stating “An exception to copyright exists which allows researchers to make copies of any copyright material for the purpose of computational analysis if they already have the right to read the work (that is, they have ‘lawful access’ to the work). This exception only permits the making of copies for the purpose of text and data mining for non-commercial research.”   the office confirmed that any contract waiving researchers’ right to create copies to perform TDM will not be enforceable.  This indicates that the practice of TDM in the U.K. is legally excluded from infringement unless it is commercial.

In the Kingdom of Saudi Arabia TDM is not mentioned by copyright law. Article 15 of the Law pointed out serval exceptions to the author’s right but not TDM. The legislator in the Kingdom must follow the global trend of excluding TDM to achieve the objectives of the Kingdom’s National Strategy for Data. In fact, legalizing TDM is crucial to attaining- a developed AI system. Several countries have begun to alter their copyright regimes to be conformant to their AI strategy aiming to lead the AI industry globally.  The Kingdom’s AI strategy aims to establish Saudi Arabia as a global hub for Data and AI.  Therefore, to achieve this objective the government should follow the leading countries in issuing TDM exceptions to maintain a copyright law that enhances AI and technology.

 AI Prolificacy:

Another issue that should be considered is the prolific nature of AI. AI can produce many copyrightable expressions within seconds. This can multiply the amount of Protected work. According to The Goethe Institute, which is the Federal Republic of Germany’s cultural institute, as of June 2023, Associated Press (AP) has created about 40,000 articles using AI as they moved from producing 300 articles every quarter to 3,700 through AI and now AP’s newsroom generates roughly 40,000 stories a year through AI.  The prolific nature of AI can be an issue when granted copyright protection. First, AI generators can produce millions of materials every day with no physical effort from humans. This may result in limiting the public domain and inhibit its role in protecting freedom of expression. Copyright protection lasts for an extended period and granting protection to millions of AI materials will limit access to these materials. This can be problematic because Copyright laws are designed to balance the interests of the author and the public to ensure the opportunity for more creation. However, this may not be achieved when access to most of the materials is limited and not available to the public. In fact, every year a work is kept out of the public domain is a year where access to information becomes limited because it will be subject to the Author’s permission.  Thus, it is crucial to protect the public domain as much as the Author to maintain a balanced scope where a fair number of materials are available in the public domain to boost future creation.

Secondly, when AI owners are granted copyright protection, the prolific nature of AI may cause a monopoly over data and information. AI produces millions of materials, and granting copyright protection to AI developers may establish control over data and information.  Humans cannot compete with AI’s prolificacy, capability, and efficiency because the ability of Humans to create can be affected and influenced by external factors such as society and economy.  Human creativity is limited to the resources, knowledge, and experience that a person has.  Therefore, to Prevent AI developers from maintaining control and ownership over most innovative expression, lawmakers must conduct studies and analyses on the possible effects of granting AI Intellectual property protection on the freedom of creativity and innovative expression. This is crucial to maintain the balance between protecting current copyrighted material and the opportunity for future creative expressions.

Finally, the prolific nature of AI may inhibit human creativity. AI can independently generate and produce millions of creative materials without any contribution from humans. To illustrate, Peter Picht in his article Artificial Intelligence and Intellectual Property Law: From Diagnosis to Action states “AI systems tend to significantly reduce the human impact as it is no longer the human author who carries out the acts of writing, coding, painting, composing, etc. Moreover, increasingly complex, and independent, black box-style AI systems tend to even prevent the authors from understanding how exactly the system executes the work.”  Picht’s statement indicates that with the presence of an AI system, humans can be excluded from the process of creation and left with the difficulty of comprehending the process of executing the result. This can inhibit human creativity because of the dependency on AI to create and innovate.

Determination of the Author

Another significant issue in asserting intellectual property rights for AI is determining ownership of the work. Who is the author of AI generative work? Is it the AI developer, AI the owner, or the AI user? Each answer leads to different possible effects. If the copyright is granted to artificial intelligence, it might not be feasible because AI does not have the ability to practice the moral and financial rights of copyright . On the other hand, if copyright is granted to the developer of an AI application, it might lead to a monopoly of many creations because it might eliminate other creative businesses and the developers will own most creations.  Finally, if copyright is granted to the user, it might conflict with the requirement of originality since the user has no role in the creation but commanding the AI.  In fact, considering the command of the user of specific questions and instructions to AI as an authorship might contradict ethics and lead to plagiarism.  For instance, students at the university will command AI to write and execute their papers and would attribute the copyright to them as users.

Possible Solution

Legal intellectuals have argued various solutions to minimize issues resulting from granting IP protection for AI. One argument is registering a fictional human author to avoid human authorship requirements and obtain copyrightability of the work. This might circumvent the human authorship requirement but would be effective in resolving the issue of determining the creating owner. to answer this question, it is essential to point to the case of work for hire. The employer is the owner and author of copyrightable material. This is due to the work contract between the parties. Comparably, the relationship between the AI developer and the user is governed by a licensing agreement which clarifies who is the owner of the creation. in the Article “AI work, An IP from IP, Protected” the author states “This is like, the traditional way of properties, i.e. calf from cow, or child of the slave, where the existing relationship of, property and owner, determines the ownership of the new creation, which is also a property in nature, as already said similar to the work-for-hire in one sense. In other sense like derivative work, where the position is whatever arise out of a property is also owned by the original owner of the property.”  The author’s point may constitute a convincing argument and resolve the issue of determining ownership of the creation, but it will not resolve other issues regarding the prolific nature of AI or its effect on the public domain. When a licensing agreement determines ownership, most developers -if not all- would assert copyrightability to them which establishes control over innovative expression and limitation on the public domain.

One possible effective solution is to grant a limited scope of IP rights. As mentioned above, potential issues in granting IP protection for AI are ownership determination, limitation on the public domain, and AI infringement. The ownership requirement could be resolved when lawmakers grant AI intellectual property rights based on the theory mentioned above. However, the rights must be limited to effectively resolve other issues such as the limitation on public domain, inhabitation of human creativity, and the control over information. Copyright laws grant various moral and financial rights that last for a long time even after the author’s death. Placing limitations on the period of protection and financial rights may effectively minimize these issues. When AI is granted IP rights for 10 years for instance, the limitation on the public domain and opportunity for future innovative expression may not be significant because after 10 years these materials will be in the public domain and be available to the public. IP officials, lawmakers, and legal intellectuals in Saudi Arabia should conduct further studies to determine the fair limitation scope that boosts the development of AI technology and minimizes possible issues. Establishing arbitrary limitations not based on empirical legal studies would affect both the copyright system and AI technology because the limitation must balance protecting current copyright principles and AI protection. The arbitrary limitation cannot result in protecting both.

Conclusion

This paper critically analyzes and explains the relationship between copyright and AI in Saudi Arabia. The paper begins with an introductory review of the SAUDI Objectives of AI and IP as important initiatives for the Kingdom’s vision of 2030. It then provided a review of the most significant issues related to AI in the context of copyright as it examined the ability of AI to be eligible for copyright protection based on the Saudi Legal System with international reference to other countries such as the U.S., U.K., and the UAE. The examination demonstrates that both laws require human authorship and exclude AI from being considered a legitimate author. After that, the paper presented a detailed review of the Saudi IP law which was drafted last year. The newly drafted law provides a clear vision of the Kingdom’s legal approach to IP and AI which assigns AI generative protection to the public domain and limits AI to protection to the presence of significant human contribution. The paper provided a comprehensive explanation of the importance of granting IP protection for AI and provided a detailed insight into possible issues that may arise from this protection. Finally, the paper presents potential solutions to minimize the possible problems. However, there might be additional issues and other possible solutions that need to be explored that concern AI and intellectual property; thus, researchers and legal intellectuals should conduct more legal studies to maintain a clear vision of AI and IP in the literature to boost the IP legal system in the Kingdom.

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